Opinion
27 240/09
01-28-2016
The PEOPLE of the State of New York, Respondent, v. Michael JORDAN, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Alexandra Keeling of counsel), and Orrick, Herrington & Sutcliffe LLP, New York (Alec E. Orenstein of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Clara H. Salzberg of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Alexandra Keeling of counsel), and Orrick, Herrington & Sutcliffe LLP, New York (Alec E. Orenstein of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Clara H. Salzberg of counsel), for respondent.
Opinion
Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered December 1, 2011, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 10 years, unanimously affirmed.
The court properly denied defendant's motion to suppress physical evidence and identification testimony. The police had a founded suspicion of criminal activity, warranting a common-law inquiry (see e.g. People v. Trevino, 126 A.D.3d 616, 6 N.Y.S.3d 57 1st Dept.2015, lv. denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 2015 ). When officers responding to a radio run involving a robbery of a woman came within half a block of the reported location, they saw defendant and a codefendant run into the street toward the officers' unmarked car while waving their arms. When the men made eye contact with the officers, they immediately changed direction. This unusual behavior suggested, at least for purposes of founded suspicion, that the two men were fleeing and frantically attempting to hail what they thought was a livery cab but suddenly recognized to be a police car. When the officers asked the men to stop and show identification, the encounter did not exceed the bounds of a common-law inquiry (see People v. Reyes, 83 N.Y.2d 945, 615 N.Y.S.2d 316, 638 N.E.2d 961 1994, cert. denied 513 U.S. 991, 115 S.Ct. 492, 130 L.Ed.2d 403 1994; People v. Bora, 83 N.Y.2d 531, 535–536, 611 N.Y.S.2d 796, 634 N.E.2d 168 1994 ), and when defendant produced an identification card belonging to a woman, this created reasonable suspicion warranting defendant's detention pending further investigation. The subsequent showup identification was justified by its close temporal and spatial proximity to the crime (see People v. Brisco, 99 N.Y.2d 596, 758 N.Y.S.2d 262, 788 N.E.2d 611 2003 ), and the circumstances of the showup, viewed as a whole, were not significantly more suggestive than those inherent in any showup (see e.g. People v. Gatling, 38 A.D.3d 239, 831 N.Y.S.2d 157 1st Dept.2007, lv. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 2007 ).
The court properly exercised its discretion in precluding defendant from impeaching the victim with an alleged prior inconsistent statement (see generally People v. Duncan, 46 N.Y.2d 74, 80, 412 N.Y.S.2d 833, 385 N.E.2d 572 1978, cert. denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 1979 ), because “the purported inconsistency rests on a slender semantic basis and lacks probative value” ( People v. Jackson, 29 A.D.3d 400, 401, 814 N.Y.S.2d 164 1st Dept.2006, lv. denied 7 N.Y.3d 790, 821 N.Y.S.2d 820, 854 N.E.2d 1284 2006 ). Defendant's constitutional argument in this regard is unavailing (see Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 1986 ).
We perceive no basis for reducing the sentence.